Heirs of Mullanphy v. Simpson

• Decision Date: 30 June 1836
• Citation: 4 Mo. 319
• Parties: HEIRS OF MULLANPHY v. SIMPSON, RUSSELL v. HEIRS OF MULLANPHY.
• Court: Missouri Supreme Court

4 Mo. 319

HEIRS OF MULLANPHY

v.SIMPSON,

RUSSELL

v.HEIRS OF MULLANPHY.

Supreme Court of Missouri.

June Term, 1836.

It appears by the record that some time in the year 1817, Pascal Cerre sold a lot or square of ground in the city of St. Louis, to one Thomas Hanly, for about the sum of $7,500, to secure the payment of which, Hanly executes a mortgage to Cerre, payable some time in the year 1823; that after the execution of this sale and mortgage, Hanly sold 35 feet fronting on Main street, running back to the river 150 feet, to P. M. Dillon, and gave Dillon a deed therefor in general warranty, and to secure the payment of the price thereof, took a mortgage of Dillon. Dillon then sold all he purchased of Hanly to Rufus Easton; Easton then divided the same into two lots, calling that part fronting on Main street, No. 1, and the part fronting on the river, No. 2. Judgments were then obtained against Easton, and the lots were both sold on execution; Simpson became the purchaser of lot No. 1, but Mullanphy had previously purchased the same lot at sheriff's sale on an execution against Easton, issued on a younger judgment than that on which Simpson purchased, but the execution was older than that on which Simpson purchased. Wilson P. Hunt became the purchaser of lot No. 2, who after that sold it to Easton, who then sold both lots to W. Russell. Hanly had, before these sales, sold the mortgage given by Dillon to him, on both lots to Mullanphy.

It seems also, that Hanly and wife mortgaged the balance of the square to John Holmes and Andrew Elliott, to secure the payment of a large sum of money. While things stood in this situation, and before any payments were made on any of these mortgages, on the 17th of October, 1822, Simpson and Hunt filed a bill in chancery, against Hanly, Holmes and Elliott and Mullanphy. The object of this bill, was to compel and restrain Mullanphy from proceeding to foreclose the mortgage Dillon had given to Hanly for the purchase money, as Mullanphy had become the purchaser, and as he was proceeding at law to obtain possession of the mortgaged premises; to restrain him from prosecuting his suit to gain possession on the forfeited mortgage, and to compel Hanly and Mullanphy to permit the complainants to redeem the mortgaged premises of lot No. 1 and 2, Mullanphy on his appearance filed a cross-bill for a discovery.

On the 26th June, 1826, Wm. Russell and the complainants filed an amended bill against all the defendants, except Hanly, then dead, praying that they may have leave to redeem not only the lots No. 1 and 2, but the whole square; to this, Mullanphy answers, that Cerre had foreclosed his mortgage on the whole square, and that he had become the purchaser; and he also sets forth, that after the purchase on the foreclosure, he had taken an assignment of the original mortgage from Cerre. This is the principal state of the case.

B. ALLEN, for Appellant. The questions to which the court have directed the attention of the counsel herein, are: 1. Whether Mullanphy's purchase under Cerre's foreclosure, does not overreach all intermediate rights and claims. 2. Whether the heirs or representatives who are to be summoned to answer, can be any other than those to whom the land would descend, or those who represent the personal fund out of which the redemption money is to come. 3. Admitting that the mortgagee under our statute, is, as in England, bound to proceed against the subsequent incumbrancers, will not the subsequent incumbrancer be compelled to pay the prior incumbrancer or first mortgagee his whole demand, in order to entitle him to redeem a part of the mortgaged premises? As to the first point, the appellant insists that Mullanphy's purchase under Cerre's mortgage does overreach all intermediate rights and claims, and gives the following reasons:

1. That is the effect which the plain import of the statute directing how mortgages should be foreclosed, would suggest, viz: that a foreclosure agreeably to the provisions of the statute, should be really a foreclosure, and vest the title in the purchaser under the foreclosure discharged of all rights and interests devised under the mortgagor subsequent to the mortgage. 2. That the foreclosure has been had agreeably to the uniform practice under the statute, from its enactment to the present day, 3. The consequent mischief of a different construction. 4. The contemporaneous exposition of the statute by the practice before the judges by whom it was enacted; it was passed in 1807, by the governor and judges of the territory of Louisiana. 5. According to the English law, the mortgagor, his heirs, executors assignees, subsequent incumbrancers and all persons claiming any interest whatsover in the premises as against the mortgagor; tenants under mortgagor by statute, merchant staple, elegit, jointure, curtesy, dower; and the crown, or estates forfeited, were necessarily to be made parties to a bill of foreclosure. 1 Mad. Ch. p. 521. It can hardly be pretended that in a proceeding to foreclose, instituted under the statute in 1808, the principles of the English law which was then no part of the law of this country would have been observed, or required to be observed, and if not, then no reasons has intervened requiring their observance at the time of the proceedings of foreclosure instituted by Cerre, 14th January, 1823. Gey. Dig. p. 124. The act of 1816, adopting the common law, adopts the same so far as it is not contrary to the laws of the territory, &c. 6 Had a petition been filed against the mortgagor in his life-time, that, under the statute, would have been sufficient without making any other person a party, even though there had been others deriving an interest under the mortgagor, and who according to the English equity system would have had to be made parties--and why? because the statute has so directed. This, supposing that the representatives as contemplated by the statute, were the alienees, &c., of the land, it being in the alternative--Gey. Dig. p. 307. 7. If the statute be in the alternative, the death of the mortgagor, could make no difference, one part of the alternative is satisfied. 8. The act of 1811, organizing the court of chancery, does not change the mode of foreclosing a mortgage, because a remedy to foreclose already existed at law.

J. SPALDING, on the same side: The first point to which the court directs the counsel on the rehearing is, whether Mullanphy's purchase under Cerre's foreclosure, overreaches all intermediate rights and claims. On this point, the defendant's counsel hold the affirmative. When the acts regulating the proceedings of foreclosure were passed in 1804 and 1807 (see Geyer's Dig. p. 307, §§ 1, 2, 3, and 4), there was no distinction between equitable and legal titles and no proceedings in chancery; such distinctions and proceedings being peculiar to English law, and not known where the civil law is the basis of legislation, as in the Spanish laws, that mode of foreclosing, was the only one and bound every body. The proceedings against the mortgagor required by that act was a proceeding against the whole world as claiming under the mortgagor; and he was constituted the representative of the land, of all interest in it, for the purpose of enforcing the incumbrance. That act makes no provision for making subsequent alienees or incumbrancers parties. 2. There is no provision in the then law, for taking the account and apportioning the amounts to be paid by different alienees and incumbrancers of the mortgaged property; there was no chancery court or jurisdiction. 3. The case of the mortgage was put by the law on the same footing with other incumbrances known to the law; for instance, judgments; in the case of judgments, it was neither then nor is it now, necessary to notify subsequent alienees and incumbrancers of the proceeding on the judgment to sell the land. An execution was sued against the judgment debtor alone, and the advertisement was merely that his interest in the land would be sold; or in cases where a year and a day had elapsed without execution, a scire facias issued on the judgment against him alone, or if dead, against his executors or administrators alone, and not against subsequent incumbrancers or alienees nor was any notice in any manner required to be given to them. In this case, the defendant in the judgment, as in the case of a mortgage, the mortgagor represented the land incumbered and all interests and subdivisions of interest in it. And in both cases, all persons acquiring any interest in the land, were bound to take notice of the incumbrance and of the fact that such incumbrancer might sell the land without actual notice to them. 4. If the legislative authority that made those enactments regulating the foreclosure of mortgage, had intended that subsequent incumbrancers and alienees should be notified in order to be bound, some provision to that effect, would have been contained in the law. The very subject was presented to that legislative authority and a law was passed at that time (1807) which shows that it was not from ignorance or over sight that the act on mortgages says nothing of subsequent alienees and incumbrancers; and it shows likewise, that the general principles of law then in force, would not cause such an interpretation of the mortgage act, as would require them to be notified, in order to be bound by the foreclosure. See Geyer's Dig. p. 364, § 59. This section provides, in so many words, that in order to continue the lien of a judgment, the subsequent alienees shall be notified. 5. The act of Feb. 18, 1825, on mortgages (old Rev. Code, 593) is in its main features, the same as the old law. It makes the mortgagor and the persons actually occupying the mortgaged land, the representatives of all the interests in the land, for the purpose of foreclosures; and expressly in § 7 makes the foreclosure and sale binding on all persons; and although that act in § 4, permits any...